News / Africa

Contentious Issues Will Shape Kenyan Referendum

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Michael Onyiego

Leading Kenyan officials have thrown their weight behind the proposed constitution on the ballot in Wednesday's national referendum, but issues of abortion, land, and Islamic courts will have the greatest impact on the country's vote.

On the eve of one of the most important votes in Kenyan history, many around the country are hopeful that Kenya can entrench its democracy and complete the process of national healing after post-election violence that rocked the country in early 2008.

Wednesday's referendum is a key part of the peace agreement struck between President Mwai Kibaki and Prime Minister Raila Odinga after the disputed presidential election in December of 2007.  Allegations of fraud unleashed ethnic violence countrywide, which left more than 1,000 dead and forced 300,000 people to flee their homes.

While recent polls show more than 60 percent of the country supports the proposed constitution on the ballot, issues over land policy, abortion and Islamic courts have stirred significant controversy.

According to "No" campaign spokesman Chris Foot, ambiguities in the document could allow the government to seize private land without compensation, a right currently afforded citizens.  The proposed constitution also places limits on land ownership for non-citizens.  The new document reverts any long-lease properties to a maximum of 99 years for foreign residents.  Foot, who also is the Chairman of the Kenya Landowners Association, worries that such limits could discourage foreign investment.

In addition, Foot warned that definitions of community land in the proposed constitution could entrench Kenya's problems with tribalism.

"They have defined community land using pejorative terms such as ethnicity," said Foot.  "Bearing in mind that most of Kenya's ills come from tribalism, to actually define community land based on tribalism was a fundamental flaw.  Secondly they have said that community land is all ancestral land.  Every bit of land in Kenya at one stage was ancestral land.  We are opening a pandora's box by saying that any community can now claim its ancestral land."

But the "Yes" campaign has refuted these concerns, arguing that land issues are merely the complaints of the land-holding elite, and President Kibaki has called the proposed policy the "best land policy the country has ever had."

Land issues are particularly contentious in Kenya's Rift Valley, where large tracts of private and community land are common.  Many fear that the passage of the new constitution could renew the violence seen in 2008.

While relatively short, a single clause on abortion included in the proposed constitution has also split Kenya along religious lines.  The clause prohibits abortion in Kenya "unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger."

This clause has provoked an outcry from Kenya's Christian community.  About 80 percent of Kenyans are Christian, and many believe the clause would allow abortions on-demand.  Groups such the Kenya Medical Association have accused the "No" campaign of misleading voters about the law, and refute such fears.

But Foot says the wording of the clause could be interpreted for broader access to abortion.

"Most countries in the west require you to have two medical doctors," said Foot.  "We have said a trained medical professional.  That is not defined and that could be anything from a herbalist to a nurse to a vet.  Another issue there is, initially it was just drafted so that when a mother's life was in danger.  But the Committee of Experts included an additional clause, which said the mother's health.  And if you look at the World Health Organization's definition of health, that does not just include physical health or mental health, it also includes social well-being and housing."

The inclusion of Islamic courts in Kenya's proposed constitution also has drawn criticism from the Christian community.  The draft allows traditional Muslim judges to resolve issues of marriage, divorce and inheritance if both parties are Muslim and agree to take the case to the court.  The Islamic courts, known as Khadis Courts were included in Kenya's constitution in 1963 as a concession to retain the country's predominantly Muslim coast after independence.

Most Kenyans do not object to the existence of the courts, but Christian groups argue the courts should be governed through separate legislation, and including them in the constitution unfairly discriminates against other religions.

Despite concerns over the draft, the "Yes" campaign maintains that the proposed set of laws is an improvement over Kenya's current constitution.  Prominent figures, such as Prime Minister Raila Odinga, have urged voters to pass the draft, assuring them that contentious clauses could be amended later through constitutional procedure.

While Foot agrees that the majority of the draft is good for the country, the "No" spokesman maintains that the contentious issues are too serious to be amended later.

"It is disingenuous of them to suggest we will change the flaws of it later on, because we feel it is taking the half-cooked loaf out of the oven before it is ready.  Keep the bulk of the document for sure, but that five percent, which we are not happy about, is actually a fatal and fundamentally flawed five percent."

Whatever the outcome, both sides have appealed to Kenyans for peace and national unity.  It is a pivotal moment for Kenya's democracy, and many observers believe Wednesday's vote will be very close.

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